Ruth Latourelle v. Terry Barber

January 20, 2011

RUTH LATOURELLE, PLAINTIFF,v.TERRY BARBER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, who is proceeding pro se, brings this civil rights action. Pending before the court is defendants' motion to dismiss (Doc. 5). Also before the court is plaintiff's request (Doc. 6) for a continuance, which defendants oppose (see Doc. 7). All defendants have been served and appear by way of their motion to dismiss. A hearing was held before the undersigned on January 13, 2011, in Redding, California. Philip B. Price, Esq., appeared for defendants. Plaintiff appeared pro se. After considering the arguments of the parties, the matter was submitted.

I. PLAINTIFF'S ALLEGATIONS

This action proceeds on the original complaint, filed on September 30, 2010. Plaintiff names the following as defendants: Terry Barber, Wayne Virag, the County of Siskiyou, and the Siskiyou County Board of Supervisors.

According to plaintiff, in April 2006 she discovered that defendant Virag, who at the time was the director of the Siskiyou County Planning Department, had "multiple conflicts of interest with citizens who were engaged in planning activities. . ." with the county. More specifically, plaintiff contends that defendant Virag had failed to disclose "over one dozen properties that he owned, partnerships that he had formed, and property sales that he had completed." Plaintiff next alleges that she accepted a position with the Siskiyou County Planning Department on May 8, 2006, as an Assistant Planner.*fn1 She worked in this position full-time as a permanent employee. Her employment was subject to a union contract which provided, among other things, that plaintiff could only be disciplined for "just cause."

Based on plaintiff's belief that defendant Virag had violated his disclosure duties, plaintiff filed a complaint on May 24, 2006, with the California Fair Political Practices Commission and the California Attorney General's Office. She states that she informed defendant Virag of her complaints the next day -- May 25, 2006. According to plaintiff, "[i]mmediately thereafter, Mr. Virag created a hostile work environment and began harassing and retaliating against Ms. LaTourelle." Plaintiff claims that defendant Virag's conduct was "hostile, intimidating, demeaning, vicious, vindictive, and callous towards Ms. LaTourelle."

Plaintiff claims that, in response to her complaints, defendant Virag was placed on paid administrative leave on June 14, 2006. According to plaintiff, on August 6, 2006, defendants Virag and Barber, who was the interim director of the Planning Department, were sitting outside the Siskiyou County Board of Supervisors chambers waiting for a hearing on the matter. Plaintiff alleges that "Mr. Virag told Ms. Barber that an employee had to be fired and that he would do so after his meeting with the Board of Supervisors." Plaintiff adds: "Ms. Barber agreed with Mr. Virag, stating that 'she' was the only planner left and that the employee would never be promoted." Plaintiff claims that, at the time of this conversation, she was the only female planner.

Plaintiff claims that defendant Virag was called into the hearing on August 6, 2006, and "terminated from employment on the spot" "based on the results of an investigation" in which, known to Virag, plaintiff had participated. According to plaintiff, after Virag's termination, "Ms. Barber harassed Ms. LaTourelle and was hostile, intimidating, demeaning, and callous towards her."

Next, plaintiff claims that she applied for the position of Assistant Director on September 1, 2006. She states that this position would have brought a substantial pay increase. Plaintiff claims that she was denied the promotion by Barber "in retaliation for Ms. LaTourelle's complaints about Mr. Virag.. . . ." Plaintiff claims that she also applied for the position of Associate Planner on September 6, 2006, and that Barber denied this promotion in retaliation. According to plaintiff, Barber instead hired Rowland Hinkle, a younger person with less experience than plaintiff. Plaintiff states that she filed a claim with the California Department of Fair Housing and Employment ("DFEH") "on or before August 10, 2008," alleging gender and age discrimination. She also states that she filed complaints with the DFEH and United States Equal Opportunity Employment Commission ("EEOC") on October 6, 2008, alleging gender and age discrimination. Plaintiff states that she was terminated March 7, 2009.

Plaintiff claims that, between September 2006 and March 2009, she made numerous requests for training that were denied by Barber. She also claims that between August 2006 and March 2009 "Ms. Barber continually harassed Ms. LaTourelle, created a hostile work environment, and intimidated and demeaned Ms. LaTourelle in retaliation for Ms. LaTourelle's complaints about Mr. Virag and her discrimination complaints . . . ."

Plaintiff alleges that Barber was promoted in November 2006 and that, between August 2006 and July 2008 Barber served plaintiff with two letters of reprimand. In particular, a July 9, 2008, "Notice of Proposed Disciplinary Action" recommended that plaintiff be suspended for three days without pay. A hearing on the recommendation was held on December 16, 2008, before the Siskiyou County Board of Supervisors. Plaintiff claims that she was denied due process because she was not allowed "pre-hearing access to the 'evidence' the county would present against her. . . ." She alleges that this violated the county's policies, state law, as well as the collective bargaining agreement. She also claims that Barber disclosed plaintiff's confidential medical information during the hearing, which was open to the public. The Board of Supervisors upheld the three-day suspension on January 6, 2009.

In another incident, plaintiff claims that, sometime in February 2009, Barber falsely accused plaintiff of harassing a co-worker plaintiff had previously visited at home during the lunch hour. According to plaintiff, Barber also "solicited a complaint against Ms. LaTourelle from Rowland Hinkle." Plaintiff states that she was served with another disciplinary notice in February 2009, this time recommending that plaintiff be terminated. Plaintiff was terminated on March 7, 2009, by defendant Barber.

Plaintiff states that she received "right to sue" letters from DFEH and EEOC on September 30, 2009. This action was filed on September 30, 2010.

Plaintiff asserts that these facts give rise to the following ten claims:

1st Claim Discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964 (alleged against defendant County of Siskiyou only). 2nd Claim Discrimination and harassment in violation of the Section 4 of the Age Discrimination in Employment Act of 1967 (alleged against defendant County of Siskiyou only). 3rd Claim Discrimination and harassment in violation of California's Fair Employment and Housing Act (alleged against defendant County of Siskiyou only). 4th Claim Retaliation in violation of 42 U.S.C. 1983 (alleged against defendants Virag and Barber). 5th Claim Wrongful termination (alleged against all defendants). 6th Claim Violations of California Labor Code § 1102.5 and/or California Government Code 8547 (alleged against all defendants). 7th Claim Defamation (alleged against all defendants). 8th Claim Intentional infliction of emotional distress (alleged against all defendants). 9th Claim Invasion of privacy (alleged against defendant Barber only). 10th Claim Public disclosure of private facts (alleged against defendant Barber only).

II. STANDARD FOR MOTION TO DISMISS

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).

In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. ...

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